Departing this world before you prepare a will means you risk leaving loved ones in a legal mess that could take years to untangle.
At Barrett Walker we’ve seen numerous issues arise when a person passes without a plan in place. In 2018 a survey by the website Finder revealed more than half of Victorian adults have no legal will.
Whatever your age, we recommend you organise time to officially outline the distribution of your estate. A will is a pivotal farewell gift, saving loved ones legal stress and potential loss of assets, while allowing them to grieve in peace.
What is a will?
A will is the document in which you declare how your assets are to be distributed, in the event of your death. Writing a note isn’t enough, and risks your wishes being rendered invalid by the courts. A will is a legally recognised document.
To create a will in Victoria, you must be 18 or over. The will must be in writing, and signed in front of two independent witnesses. Witnesses must also 18 or over, and are required to sign the document. “Testamentary” capacity is needed for a will to be valid.
This means you cannot be mentally disordered, and must be capable of understanding the purpose of a will, and the value of your assets. In some cases, an affidavit signed by your doctor may be suggested, to avoid potential challenges.
A will is not compulsory, but highly recommended. People often assume assets will be distributed according to known wishes. Instead, the lack of a legal will renders your estate “intestate”, and Victoria’s intestacy laws come into effect.
Any verbal expressions regarding benefits to children, charities, relatives, friends, past partners, and step children are not required to be met. The distribution of your estate will take place according to Victorian law.
The law on dying without a will
Depending on personal situation, distribution of assets without a will can become complicated. The Administration and Probate Act 1958 (Vic) addresses various scenarios. Please note, in recent years amendments to the Act have taken place.
Estate planning refers to how your assets are to be transferred upon passing. Make sure financial responsibilities are dealt with, including active debt and trusts, fiscal care for dependents, as well as any guardianship responsibilities.
The people and/or charities you leave assets to is a personal choice. Be aware, a will can be contested if potential beneficiaries are overlooked. The courts may decide you failed to provide, and change the distribution of your estate.
We advise on necessary legalities (including Enduring Power of Attorney) for situations complicated by personal relationships, health issues, and overseas assets or residency. The goal is to ensure your will remains a valid legal document.
Barrett Walker is a well-credentialed and experienced Melbourne wills lawyers
Worried about potential problems regarding aspects of your will? The Barrett Walker team are expert wills and estate lawyers in Melbourne, with decades of diverse experience. Our dedicated team’s informed perspective is a priceless asset.
If your situation changes, we also assist with will updates. Barrett Walker is here to help via cost-effective legal solutions. Regardless of what the future may hold, you can trust us to enable the smooth transition of your estate. Contact us for your free case assessment.